R.S Garg, J.:— The Appeal was finally heard at the admission stage with the consent of the parties.
2. The appellant/petitioner being aggrieved by order dated 4.1.2002 passed in C.W.J.C No. 65 of 2002 has filed this Letters Patent Appeal to impugn the correctness, validity and propriety of the said order. The facts in nutshell are that the appellant/petitioner was granted a licence for pantry car regarding Train No. 5205 UP/5206 DN, under the policy of 1992 of the Indian Railways. Undisputedly the respondents have substituted the 1992 policy by Catering Policy of 2000, circulated by Commercial Circular No. 58 of 2000 dated 20.12.2000 The grievance of the petitioner/appellant is that in accordance with paragraph 14.10, of the new policy the petitioner/appellant is entitled to renewal in his favour for a period up to October, 2005 but contrary to the said policy (Para 14.10) the respondent-administration has issued letter date 19.12.2001 (Annexure 16 to the petition) under the signature of the General Manager (Commercial), Gorakhpur to the petitioner/appellant, whereunder the appellant's application for renewal of the existing contract to manage the pantry car and catering and onboard service for the above referred trains have been rejected. The appellant also prayed that notice/advertisement dated 24.12.2001 (Annexure 1 to the petition) calling up the appellant and others to participate in the competitive bids for the same job be also quashed.
3. Learned Single Judge after taking into consideration the said policy of 2000, especially para 14.10 and the other relevant material came to the conclusion that in exercise of Extra-Ordinary Prerogative Writ Jurisdiction, the High Court could not interfere with the administrative and commercial decisions of the public bodies; the petitioner/appellant has completed his term of five years and that the action of the respondents being entirely administrative and commercial could not be successfully challenged before the High Court. The learned single Judge also found that no material has been produced on the record to show that the petitioner/appellant meted discrimination or the authorities were acting unfairly. It was also observed that the petitioner/appellant is not entitled to an automatic renewal of his licence in accordance with para 14.10, of the new policy.
4. Learned counsel for the petitioner appellant submitted that the policy was challenged before the High Court of Kerala by number of persons. The High Court after giving its thoughtful considerations dismissed the petition. On the strength of the said dismissal learned counsel for the appellant submits that as the policy has been held to be validly framed, the rights of the petitioner/appellant are protected under para 14.10 and as the case of the petitioner/appellant for renewal of the licence has not been considered, this Court must interfere. It is also contended before us that the learned Single Judge misunderstood the issue and instead of appreciating the rights of the petitioner under para 14.10 of the new policy entered into an arena which was never brought to the notice of the Court. It is contended on behalf of the appellant that if the policy is held to be valid then not only the petitioner and people alike but even the authority issuing the policy would also be bound by the same.
5. To counter the said argument it is contended by the learned counsel for the Railway administration that Annexure-1, annexed to the counter affidavit filed in this L.P.A, would clearly show that the Railway administration has taken yet another decision and has decided that management of catering licences of all major units etc. will be taken over by I.R.C.T.C (Indian Railway Catering and Tourism Corporation Limited) after the expiry of the present term of the licences of all such units and said IRCTC will award fresh catering licences of such units. It is submitted that letter dated 22/23, 10.2001 is also a policy decision of the Ministry of Railway (Government of India), therefore, the respondent-authorities are justified in issuing the advertisements requiring the petitioner and alike to bid. It is also contended that unless it is shown that Annexure-12, the letter dated 22/23.10.2001 singles out the petitioner or there is a hostile discrimination in case of the petitioner, the petitioner cannot be allowed to maintain the present writ.
6. In reply to the said argument it is contended by the learned counsel for the petitioner that the policy was issued under Commercial Circular No. 58 of 2000 and as the said policy is still in force the railway administration without amending the said policy could not issue any further orders/circulars nor could invite the bids. He further submits that the letter, Annexure-1 (also annexed as Annexure-12 to the L.P.A) cannot override the policy of 2000. He submits that in almost, identical matters, the High Court of Kerala has issued some interim orders protecting the rights of such licensee, therefore, this Court should also grant relief to the petitioner/appellant.
7. We have heard the parties at length and have perused the policy, Annexure-12 to the L.R.A, the judgment of the Kerala High Court and the interim orders dated 8.1.2001 passed in C.W No. 95 and C.M 211 of 2002 on 8.1.2001 In Writ Applications No. 2913 and 3044 of 2001 decided on 3.12.2001 a Division Bench of Kerala High Court was required to consider the validity of the policy of 2000. A number of challenges were thrown to the said policy. After rejecting every argument, the Kerala High Court held that the policy was valid. Para 56 of the said judgment is herewith quoted for the benefit of all concerned:
“In the changing life style and global economy so as to be in the business, drastic policy decisions have to be conceived and implemented and at times it may appear to be unconventional. As the Supreme Court said in Government of India v. HDC [(1993) 3 SCC 499] change in policy does not by itself vitiate the action taken pursuant thereto, if they are reasonable and rational. The view has been reiterated in M.V.AI Quamar v. Tsavliris Salvage (International) Ltd. (2000) 8 SCC 278. It will be wholly irregular to doubt the wisdom of the administration and for the only reason that it may not be appealable to one's conventional views. The additional income does not go to private hands but is pumped back to the system, to make it more healthy, and ultimately caters to better public interest. In this view, the Court is constrained to adopt a realistic attitude. The Railway Board, it appears have bestowed thought to revamp the organization, and are introducing policies to cope up with the changing situation. The petitioners have therefore to adapt themselves to the changes, and cannot insist them to stick on to the old patterns.”
8. From the above referred observations made by the Kerala High Court it would clearly appear that the Railway Administration/the Government of India has fullest authority to change the policy if the said policy is reasonable and rational. It does not cause any unreasonable restriction on the trade, nor it has debarred any particular person from taking part in the bid/tender process. It would also appear from the judgment of the Kerala High Court that drastic policies have to be conceived and implemented though at times this may appear to be unconventional.
9. The learned counsel for the appellant does not challegne the observations made by the Kerala High Court in para 56 of their judgment rather supports the same saying that if the policy is held to be valid then the rights of the petitioner as contained in para 14.10, should also be protected. For proper appreciation of para 14.10 it is necessary to refer to the same. Para 14.10, reads as under:—
“4.10 Application of New Policy to existing licences.
10. New catering policy will take effect from the date of issue of this policy in case of all new catering/vending licences. This will also apply in case of award of fresh licence in the event of termination, non-renewal, vacation etc. of the existing licences. However, in the case of existing licences, which continue to provide satisfactory services, the licensees will be allowed to complete their present term subject to application of all other policy directives issued from time to time. Thereafter licences of such existing licensees shall be renewable for such periods so that the total period of operation from the date of issue of New Catering Policy is five years on uniform basis. For instance in case of an existing licence which is expiring, say in October, 2001, the licence shall be renewable for a further period of 4 years beyond October, 2001 i.e upto October, 2005. If a licence is expiring, say in October 2003, the same shall be renewable further period of 2 years i.e upto October, 2005. However, such renewals should not be automatic and railways will ensure ontinuous monitoring of performance as per provisions contained in para 14.6.2 and para 14.6.4 All existing licensees may be advised in this regard.”
11. Before proceeding further in the matter it cannot be forgotten that the petitioner/appellant was given a licence for five years and the same has to expire.
12. The petitioner/appellant says and submits that in accordance with para 14.10, to bring uniformity in the period of different licences, the licences already issued in favour of the petitioner/appellant deserves to be renewed or, in any case, of the petitioner/appellant deserves to be considered by the authorities before issuing any public notice inviting tenders/bids. We have already noticed that the policy decision was circulated on 20.10.2000 and almost after about one year of the same, on 22.10.2001 under Annexure-12 the railways administration has issued another policy/circular. The question for consideration is that whether the powers conferred upon the petitioner/appellant under para 14.10 are absolute or the said rights are only subject to the said policy and the subsequent policies.
13. According to the new policy especially para 14.10, the policy has to take effect from the date of issue of the policy in case of all new catering/vending licences. It would also apply in case of award of fresh licence in the event of termination, non-renewable, vacation etc. of the existing licences. The policy further says that in the case of existing licences which continue to provide satisfactory services, the licensees will be allowed to complete their present term subject to application of all other policy directives issued from time to time. The policy also says that thereafter licences of such existing licensees shall be renewable for such periods so that the total period of operation from the date of issue of new catering policy is five years on uniform basis. The policy also gives certain instances regarding expiry and renewal of the existing licences. The policy also says that such renewals should not be automatic and railways will ensure continuous monitoring of performance as per the provisions contained in para 14.6.2 and para 14.6.4 The submission of the learned counsel for the appellant/petitioner is that unless his case for renewal of the licence is considered the railways authorities are not entitled to call for a fresh bid.
14. True it is that the new policy was circulated under Commercial Circular No. 58 of 2000 dated 20.10.2000 but the very same authority had issued yet another Circular on 22/23.10.2001. The said letter (Annexure-12) clearly says that the Ministry of Railway has further decided that management of catering licences of all major units such as of mobile units, restaurants/refreshment rooms at ‘A’ Class stations, multi-outlet food plazas and single outlet fast food centres will be taken over by IRCTC after the expiry of present term of the licences of all such units and thereafter IRCTC will award fresh catering licences of such units. The submission of the learned counsel for the appellant that Annexunre-12 cannot override or supersede the policy of 2000 should not detain us unnecessarily. The said policy of 2000 was issued by the Government of India (Ministry of Railways) after reviewing the catering policy of 1992. The Commercial Circular (Annexure-7) appended to the policy, clearly provides that the catering policy, 2000 shall supersede the existing policy guidelines issued from time to time on the subject covered in the policy document except those specifically referred to. The letter dated 22.10.2001 (Annexure-12) has also been issued by Government of India (Ministry of Railways). The said letter (Annexure-12) does not run contrary to the policy of 2000. In the fact it simply provides another mode of execution of the policy. Annexure-12 certainly would give a right to the IRCTC to take over all such units after the expiry of the present term of the licences of all such units. The petitioner/appellant cannot say that the rights flowing from para 14.10, of the 2000 policy are absolute and indefeasible. Para 14.10 simply gives a concession/relaxation in favour of the existing licensees. The concession given in favour of such licensees would always be subject to modification of or amendment to the policy. We are unable to hold that the letter dated 22.10.2001 (Annexure-12) is in the teeth of or is in derogation of 2000 policy. Where a concession is given, then a party cannot come and say that the concession is absolute and, therefore, they are entitled to a renewal in their favour. It is not the case of the petitioner that because of the new policy he has changed his position irretrievably and if due effect is not given to para 14.10 of the policy of 2000, he would suffer unnecessarily. The law on the subject is very clear. If an authority assures a person that on doing of a particular thing by said person, certain benefits would flow in favour of the said person and after relying upon the said assurance of the authority the said person changes his position irretrievably then such authority can be asked to adhere to the policy. But in a case where the earlier agreement did not come to an end nor was terminated nor the present appellant submitted before the Court that he changed his position or status irretrievably, such person cannot be allowed to say that his right is indefeasible.
15. Learned counsel for the appellant submitted that letter dated 22.10.2001 (Annexure-12) was never brought to the notice of the Kerala High Court, therefore, this Court must held that the effect of the said letter was abandoned or the respondents were not relying upon the said letter. We are unable to concede to this argument. The question before the High Court of Kerala was whether the policy of 2000 was validly enacted or not. Whether the policy could be amended or any further rider could be appended to the said policy was not the question before the High Court of Kerala. When a question was not raised before a particular Court nor the attention of the said Court is invited to a particular point then it cannot be said that a particular document which came into existence subsequent to the policy decision would have no effect or bearing on policy itself.
16. It is not disputed before us that the Government of India (Ministry of Railways) has a right and authority to issue a policy relating to issuance of licences. If an authority has power and jurisdiction to frame, issue and circulate a particular policy then power to enact such a policy, within its sweep contains the powers to amend, modify, annul, recall or cancel the said policy. Present is not a case where the appellant/petitioner says that the policy of 2000 was bad, therefore, Annexure-12 is also bad. The Appellant's case is that the policy is valid, therefore, para 14.10 should be given full effect. In our opinion, the submission is misconceived. Para 14.10 is a part of the policy and Annexure-12, in fact, amends the said policy.
17. Learned counsel for the petitioner/appellant next submitted that the petitioner's legitimate expectation would be adversely affected, therefore, also the letter dated 22.10.2001 should be ignored and the case of the petitioner be directed to be considered by the competent authority for renewal of the licence. In our opinion, the argument is an argument of desperation. It is not the case of the petitioner that either in anticipation or in execution of the policy he has done something. It is also not the case of the petitioner that relying upon para 14.10 of the policy the petitioner has changed his position or has done something which ultimately would put him at a loss, if the policy of 2000, especially para 14.10, is not adhered to. Undisputedly the period of the earlier licence granted to the petitioner did not terminate on the date when the petition was filed.
18. The question of legitimate expectation would not arise in the present case because neither there are factual pleadings nor there is a legal foundation.
19. in the case of the petitioner, the agreement was entered on 5.2.1997, the petitioner/appellant deposited the licence fees and security money on 19/20-2-1997 and started the catering work from that date. The respondents, have issued the letter dated 19.12.2001 and have issued the notice/advertisement on 24.12.2001 calling upon the petitioner and others to participate in the competitive bid for the said work for the subsequent period. Present is not a case where because of the Circular dated 22.10.2001 (Annexure-12) the contract in existence was terminated or the petitioner was to suffer any thunderbolt because of the invitation of the competitive bids.
20. The learned Single Judge was certainly right in observing that the law is well settled that this Court in exercise of extra-ordinary prerogative writ jurisdiction is reluctant to interfere with the administrative and commercial decisions of public bodies. The same are in fact the observations of the Kerala High Court while upholding the policy of 2000. Present is not a case where non-interference by the High Court would cause unnecessary loss or serious prejudice to the petitioner. In our considered opinion the policy of 2000 would stand amended by letter dated 22.10.2001 (Annexure-12) and the petitioner would be required to submit his competitive bid in accordance with the notice/advertisement issued by the railway administration. After giving our thoughtful consideration to the arguments raised by the parties, we are unable to hold that the petitioner has any indefeasible or absolute right in his favour and the respondents are obliged or duty bound either to renew the licence or consider the case of the petitioner for renewal of the licence till October, 2005. So far as the order dated 8.1.2001 passed by learned Single Judge of the Kerala High Court is concerned, we are unable to concede to the said order.
21. In view of the findings aforesaid the appeal has no merits. It deserves to and is accordingly dismissed.